14 Wend. 593 | Court for the Trial of Impeachments and Correction of Errors | 1835
The following.opinions were delivered:
Whether Kingsbury is a competent witness for the defendant below, is to be determined by a careful consideration of his testimony taken by the examiners, as the exception, if available at all, (a point I am not disposed to examine, though j must say I think it very loosely taken,) was founded upon it; and it necessarily follows, in the investigation and decision of the question, we must look at the whole of it, and upon the assumption that it is true. Had the complainants desired to put the question upon any different footing, they should have objected preliminarily to him on the ground of interest, and proved it by other witnesses. Having relied upon the interest proved by the witness himself, we must take all the facts brought out by him, and decide upon the whole matter as presented by him.
The true construction of the article of agreement between the witness and the complainants, of the date of the 29th June, 1826, constitutes them general partners. The case of Dobb v. Halsey, 16 Johns. R, 34, is very much in point on this question. A written agreement was there proved between the plaintiffs and one Moore, by which the latter covenanted to superintend the saw pits and lumber yard of the plaintiffs for one year,in consideration of receiving one-third part of the net profits. The court decided that the agreement created a partnership, as well as it regarded the partners themselves as third persons; and cases were referred to in support of the principle upon which the decision was placed. Indeed I do not remember that this was made a serious question on the argument, nor do I deem it very material in the result. I have said that the witness and complainants were general partners. The latter were to remit and consign to Kingsbury “ vessels, goods and merchandize,” to be by him received, managed, sold and bartered, agreeably to instructions, or in such other way and manner as he should think best for the benefit of the concern. Here is no restriction to deal in a particular article, or in a specific branch of business. “ Goods
The bill is filed to obtained an account growing out of the mutual dealings of the firm of Kingsbury, Gregory & Selman on the one side, and of Dodge & Green on the other. Kings, bury not having been made a party complainant, is called as a witness for the defendants, and is objected to on the ground of interest. At the first view it appears quite obvious that his interest lies wholly against the party calling him, as he would be entitled to one half of any balance that might be found due his copartners. Such would be the plain and simple conclusion, were it not for the fact that he is individually holden to the defendants on a portion of the account. It appears throughout the whole of the operations of the two houses at Albany and Marblehead, that the business was conducted at each place in thenameof the persons immediately superintending it. Drafts and notes were drawn, and acceptances given in
There is however a feature in this case not belonging to either of the above cases, and which I apprehend must clearly distinguish it. I have before said that the interest of Kingsbury must depend upon a consideration of the whole of his evidence, as it is put upon that ground by the exception and mode of proceeding: the complainants contending that he shows himself to be interested. Now it is clear, both from the articles of partnership and the evidence of Kingsbury, that Gregory & Selman are ultimately responsible for the whole of this account. They were to furnish for the Albany store all the “ goods and merchandize,” and Kingsbury was to sell, barter and dispose of the same, and the net profits were to be equally divided. Accordingly when an arrangemement was made with Dodge & Green to permit their credit or responsibility to be used in purchasing goods in the city of New-York, Gregory directed that whatever goods were bought by means of such credit, should be charged to the account of the complainants. Under this arrangement Kingsbury was authorized to buy goods in the city, and draw upon Dodge & Green, and the drafts were to be met when due by the complainants; or he was to draw upon them directly in favor of Dodge & Green, which in the course of the business amounted to the same thing. All their dealings subsequently were obviously conducted upon this footing. How then is Kingsbury interested ? He is no doubt liable upon these drafts, and also on notes given in exchange for acceptances of Dodge & Green, which went into the general concern; and therefore it is said he is interested in throwing this liability upon the complainants. But suppose a recovery against him by Dodge & Green, and he obliged to pay them, he has a remedy over against the complainants. The debt is theirs. The goods for which
There is scarcely any subject that occasions greater embarrassment to the ministers of the law, or that has produced a greater multiplicity of decisions than the extent and application of the rule for excluding witnesses on account of interest. The first impression would be, that nothing could be more simple or easy, when all the facts were known, than to decide whether a witness stood in such a relation to the subject matter of controversy, that his testimony could be productive of a personal advantange to himself ; and yet it is found that the relations and bearings of litigations are frequently so ramified and complex, that when all the facts are ascertained that are necessary for showing the position in which the witness stands, it often becomes a question of extreme nicety, 1 may almost say of metaphysical subtlety, to determine whether he can be so affected by any decision of the cause, that he has a definable interest in favoring one party more than the other. These circumstances have caused a long felt anxiety, productive of many attempts to fix some simple general rule, that might be applied as a universal test, to the multiform questions of this sort, which continually are presenting themselves. Such a general rule, which for its reasonableness, brevity and apparent simplicity, lias commended itself to the memory and confidence of the profession, seemed to be laid down by that distinguished jurist, Mr. Justice Buller, in Bent v. Baker, 3 T. R. 27; which is, that the competency of a witness is to be tested by this enquiry, “ Is he to gain or lose by the event of the suit ?” Experience, however, teaches, in respect to this, as to many other rules intended to simplify the process of human reasoning, that it is much easier to invent an axiom than to agree on its application to particular cases. And when we are called to examine the numerous decisions that have been made, as well since as before the promulgation of this rule, and are compelled to see that many of them are hardly reconcileable, and some of them are plainly in collision with others, and this, notwithstanding
These reflections are suggested by the unexpected difficulties I have encountered in the investigation of this case, and in my attempts to find some direct, plain, uncontradicted decision that would settle the question, whether Kingsbury is or is not a competent witness for the respondent in this suit. The facts to show his relation to the parties, and the purpose and bearing of his testimony upon them, are few and simple ; but the effect of his testimony upon himself is more intricate and disputable. These facts are, that the complainants, who were merchants at Marblehead, in Massachusetts, having had commercial dealings with the defendant and his partner, now deceased, merchants in New-York, file their bill against the defendant, as surviving partner, to compel him to account for a large balance claimed to be due them. The defendant, in his answer, as one ground of defence, sets forth an indebtedness from Kingsbury, the witness, and alleges that the complainants were partners with Kingsbury, and jointly liable for his indebtedness. To establish this fact he calls upon Kingsbury, who testifies to his indebtedness to the defendant, to the joint liability of the complainants with him, to their insolvency, and to their large indebtedness to himself. The question is presented, has not Kings-bury such an interest in the event of the suit as disqualifies him from testifying 1 That he was interested in some of the matters to which his testimony related cannot be disputed, but it is denied that he had any interest in lessening or defeating the recovery by the complainants ; on the contrary, as he claimed to be their partner, and therefore could call on them for a share of whatever they recovered, it was his interest to make their recovery as large as possible ; and even admitting that he had an interest in establishing a partnership between himself and the complainants, so as to
The principle that a witness is competent, though he has an interest in the subject matter of controversy, if it is equipoised by some other interest, so that he will lose or gain equally, let the event of the suit be what it may, is perfectly familiar j but the application of it is often perplexing and difficult, and the decisions under it are far from being harmonious and consistent. It is not surprizing that they are not, for the faculties of the human mind are not so uniform in their operations that we should expect always to see wise and honest men drawing the same inferences from the same facts. To ascertain with certainty that the conflicting interests of a witness are exactly equiponderant, is in some cases a matter of extreme nicety, requiring the most laborious efforts of the clearest intellect, while the conclusion that a witness’ interest is necessarily balanced, because there are motives in both scales, is one easy to be reached by an unfatiguing process of reasoning. This is to cut, and not to untie the gordian not. When the slightest preponderance can be discovered between two conflicting interests, this difference is to be considered an absolute interest, not countervailed; for unless we regard the slightest excess to be as much a real interest as if that excess had been the only subject in dispute, we shall find it difficult, by legal reasoning, to stop short of the conclusion that the
The first case which I find, where the question was distinctly raised, whether a plaintiff could call his debtor to prove that the defendant in the suit was also liable, as well as himself for the debt, is that of Lockhart v. Graham, Strange, 35. From the short note made of the case it appears that it was an action against one of three joint and several obligors, and one of the other obligors was admitted, to prove the execution of the bond by the defendant. The case is very bald, and the conclusion of the court is all that is given. Resting on this case, there comes, after a long interval, that of Blackett v. Weir, 5 Barn. & Cress. 385, where a witness was allowed to prove the defendant jointly liable with himself. In this case the liability of the witness appeared only by his own testimony on voir dire, and Littledale, J. seemed to regard this as an important circumstance. But in the next case, in the king’s bench, Hall v. Curson, 9 Barn. & Cress. Abbott, Ch. J., decided this circumstance to be unimportant, and reiterated the decision on the broad ground that the interest of the witness was counterbalanced. In addition to these authorities, the respondent’s counsel has cited 2 Starkie’s Ev. 302, which will be found, however, to rest wholly on the marginal note of the report of Ridley v. Taylor, 13 East, 176. This note is not sustained by the case, which involves no question of the competency of witnesses. On the other side of this proposition the cases are more numerous, and in courts equally respectable. State v. Penman, 2 Desaus. 4 and 5. The court of South Carolina decided that a partner in a company was not an admissible witness to prove that another person is a member; especially where there are written articles. About the same time Lord Ellenborough decided at nisi prius, 3 Campb. 317, that a person purchasing goods in his own name is not a competent witness to prove that he purchased them as agent for the defendant. Brown v. Brown, 4 Taunt. 752, the decis
But after mature reflection, the more carefully exerted because of a first impression the other way, I am persuaded that the principle of those decisions, at least as it is illustrated by the facts of this case, is erroneous; at any rate, that the witness, Kingsbury,under the circumstances in which he was offered, was not a competent witness for the defendant, to charge the complainants with an indebtedness for which prima facie he alone was liable. It is not denied that this was the direct effect of his testimony, nor but that to this particular point he had a certain interest; but this interest, it is said, was counterpoised by the fact that being a partner with the complainants, he could compel them to contribute, in case he should first pay the debt, and therefore it was indifferent to him whether they helped him pay it in the first instance, or repaid their share of it to him after he had paid the whole of it. The fallacy of this argument consists in assuming the very fact in dispute, that the witness was in truth the partner of the complainants, and they liable to pay debts contracted in his name. This is the precise position which the witness is called to establish, and which he has an interest in establishing, though it be contrary to the truth. That it must be so appears from this, that the moment it is admitted he is a partner with the complainants it becomes unnecessary for the defendant to call him ; for the fact of the joint liability of the complainants being already established, the conclusion for which the defendant contends follows of course. If it may be assumed that witnesses will swear to no more than the truth-, though they may benefit themselves by doing so, and we are to take what they do swear to as evidence that they have no interest in swearing to it, the whole doctrine of the disqualification of witnesses is exploded. I take the true principle to be, that if the case shows, without the witness’ testimony, that he has an interest in the event, he shall not be admitted to swear to a different state of facts, which, when established, make him an indifferent witness; and for this plain reason, that there is the same probability he will swear that
I put this case on the broad ground presented by Chief Justice Best, in Ripley v. Thompson, 12 Moore, 55; but there is a strong distinguishing fact disclosed, which is, that the complainants are indebted to the witness, and are insolvent. But the chancellor says, “ The fact that they were insolvent did not alter the nature of his interestj because, if he had obtained a decree against the defendant, he could, by filing a bill to settle the copartnership accounts, have prevented them from receiving the money until the whole copartnership debts, including any balance which might be due to him from his copartners, were settled or provided for.” I confess I do not understand the force of of this remark, for I cannot see how the witness, who acknowledges himself indebted to the defendant, is to obtain a decree against him, and especially when he is not ¡mpleaded as a party in any suit with him. Besides, there
Another question remains for examination—which is, whether the objection to the witness was made at such time and in such manner, that the party could afterwards avail himself of it. This depends essentially on the effect of the 85th rule of the court of chancery, and its application to this case. Except for this rule, there can be no reasonable doubt that the objection was sufficient in time and mode. In Swift v. Dean, 6 Johns. R. 538, which was in this court, Justice Thompson held that the rule is equally settled in equity as at law that if a witness, at any stage of his examination, discovers himself to be interested, he is to be rejected and his testimony entirely set aside. This principle, I believe, has never been disputed ; and it would be decisive in this case, if the examination of Kingsbury had been completed as well as commenced before the adoption of the new rules. That took place in January, 1830, and the examination of the witness commenced on the 10th of December preceding, before one examiner, and was resumed and completed in April following before another. It is not necessary, I think, to inquire as to the propriety of applying the rule to an examination already commenced ; for it strikes me that the note made by the second examiner, when the examination was resumed before him, is enough, under the circumstances of the case, to make out a compliance with the spirit of the rule. This rule, after declaring that no objection to the competency of a witness
Tod etermine whether the testimony of Kingsbury was properly excluded, it is necessary to inquire whether his competency as a witness was duly objected to; for
If the objection to the competency of Kingsbury as a witness had been made in due time, I cannot readily perceive how the appellants’ objection to his competency on the ground of interest could have prevailed ; for it appears to me, if he was interested at all, he was interested to sustain the appellants. If he was a copartner, and they had recovered, he would have been entitled to a portion of the amount recovered ; but I forbear to enter into an examination of that part of the case, as I am for affirming the decree of the chancellor, on the ground that the appellants were too late to make their objection on the hearing of the cause, not having excepted before the examination was closed.
It appears to me not to be a matter "of such moment, to decide whether Kingsbury was an interested witness or not. Conceding, for all the purposes of this cause, that he was a deeply interested witness, yet I know of no rule which will exclude his testimony, unless he be objected to at or before the closing the proofs in the cause. Fair practice and common justice require the objection to be made before closing the proofs, that the opposite party may have an opportunity to establish by other witnesses what he has proved by him. If a party will not object, he admits the competency of the witness. To allow of a different rule would lead
On the question being put, Shall this decree be reserved ? the members of the court voted as follows:
In the affirmative—Senators Tracy, Lacy, Lansing and Kemble—4.
In the negative—The President of the Senate, Chief Justice Savage, Mr. Justice Nelson ; Senators Armstrong, Beardsley, Cropsey, Downing, Edwards, Fisk, Gansevoort, Halsey, Loomis, Mac Donald, Mack, Maison, Van Schaick, and Willes—17.
Resolved, That Kingsbury was a competent witness. On the question of the adoption of which resolution, the members of the court voted as follows:
In the affirmative—The President of the Senate, Chief Justice Savage, Mr. Justice Nelson, and Senators Arms-strong, Beardsley, Cropsey, Downing, Fisk,Gansevoort, Halsey, Looms, Mac Donald, Maison, Willes—14.
In the negative—Senators Tracy, Lacy, Lansing, Kemble, Mack, Van Schaicr—6.
Resolved, That the objection to the competency of the witness ought to have been made before the closing of the proofs. On the question of the adoption of which resolution, fourteen members of the court voted in the affirmative»
Whereupon the decree of the chancellor was affirmed.